How Kavanaugh on the Supreme Court may affect abortion rights

NEW YORK (FOX5NY.COM) - Pro-choice and pro-life groups alike are confident that Supreme Court nominee Brett Kavanaugh would be a vote against abortion rights. But for both sides, the question now is how fast the court would move to reverse Roe v. Wade if Kavanaugh gets confirmed.

"We will not allow for the next generation that five men on the Supreme Court will tell women what to do with their bodies," Sen. Bob Menendez, D-N.J., said at a Planned Parenthood rally in Newark on Monday.

"Judge Kavanaugh has throughout his career asked the right questions about constitutional intent and interpretation," said Steve Aden, the chief legal officer and general counsel for Americans United for Life. "And we think in most cases has come up with the right answers."

Answers like Kavanaugh's dissent in Garza v. Hargan, issued last October, when the judge said the Trump administration's refusal to release an undocumented teen to obtain an abortion did not unduly burden her right to seek the procedure.

In a speech a month earlier at the American Enterprise Institute, Kavanaugh celebrated former Chief Justice William H. Rehnquist, a Roe v. Wade dissenter, as his first judicial hero.

"He was successful in stemming the general tide of freewheeling judicial creation of unremunerated rights that were not rooted in the nation's history and tradition," Kavanaugh said.

But if Judge Kavanaugh isn't a fan of Roe v. Wade, would a court with a Justice Kavanaugh automatically reverse the ruling, as then-candidate Donald Trump once said any of his Supreme Court nominees would do?

"I would be surprised if, Trump's promises notwithstanding, the court in the next year or two overturned Roe with no cases coming before that," Florida State University College of Law professor Mary Ziegler said.

And the Supreme Court could uphold an array of abortion restrictions without reversing Roe.

"The laws you hear most often or among the most often are those laws banning abortion at 20 weeks or when fetal pain can be detected," Ziegler said.

Or laws that say "no abortions because the mother doesn't want a girl baby, for example, [or] based on Down syndrome," Aden said. "Those are the kinds of issues that we think would work their way to the Supreme Court."

Any of those issues, Ziegler said, would serve to widen what pro-life states can do under Roe, which forbids abortion restrictions during the first trimester, and under the 1992 decision forbidding states to place an undue burden on a woman seeking to obtain an abortion.